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Re[2]: [ga-roots] Microsoft case shows how ICANN breaches USA antitrust laws
BTW, to clarify, under established case law governmental agencies are
immune from antitrust laws, and so are private companies carrying out
programs under authority from the government.
Look up "federal instrumentality" Len.
Further, the decision you quote is only binding in the circuit it was
delivered in, not nationwide, and certainly not in California, you
state you will be suing ICANN.
I expect you will have the same success here as you did in AU when you
tried this, you were effectively laughed out of court there.
Friday, June 29, 2001, 11:54:41 PM, William X. Walsh wrote:
> Hello Len,
> Don't know much about US Laws or the legal systems do you?
> Friday, June 29, 2001, 11:43:51 PM, Len Lindon wrote:
>> Thursday's Microsoft ruling by the US Court of Appeals shows exactly
>> how ICANN, a California corporation, breaches USA longstanding
>> USA antitrust laws through its exclusionary contracts and activies.
>> Take this conclusion at page 46:
>>> By ensuring that the majorityııof all IAP subscribers
>>> are offered IE either as the default browser or as the only
>>> browser, Microsoftıs deals with the IAPs clearly have a
>>> significant effect in preserving its monopoly;they help keep
>>> usage of Navigator below the critical level necessary for
>>> Navigator or any other rival to pose a real threat to Micro-
>>> soft ıs monopoly. (Microsoft sought to divert enough browser
>>> usage from Navigator to neutralize it as a platform.ıı)
>> Now substitute "ICANN" for "Microsoft" and paraphrase as follows:
>> By ensuring that the majorityııof all Internet Users
>> are offered ICANN root either as the default root/nameserver
>> or as the only root/nameserver, ICANNıs deals with Internet
>> Address Providers clearly have a significant effect in
>> preserving its monopoly; they help keep usage of non-ICANN
>> roots and tlds below the critical level necessary for
>> them or any other rival to pose a real threat to ICANNıs monopoly.
>> (ICANN sought-- and seeks-- to divert enough address usage from
>> non-ICANN roots/tlds to neutralise them as service providers).
>> The Court of Appeals concluded by ruling (at page 47) that:
>> > Microsoftıs exclusive contracts with IAPs are exclusionary
>>> devices,in violation of §2 of the Sherman Act.
>> In August the Supreme Court of Uruguay at Montevideo will be
>> asked to conclude that:
>> "ICANN's exclusive contracts with Internet Address Providers
>> are exclusionary devices, in violation of the USA Sherman Act."
>> In early September antitrust proceedings will be commenced
>> in California at the nearest relevant court to Marina del Rey
>> asking the court to confirm that:
>> "ICANN's exclusive contracts with Internet Address Providers
>> are exclusionary devices, in violation of the USA Sherman Act."
>> A copy of this email will be produced in both legal proceedings
>> to show ICANN officials and boosters had notice of its posting
>> on ga-roots@dnso.org
>> Len Lindon, Barrister
>> Interim Trustee for Dot Humanrights Interim Trust
>> ___________________________________________________________________
>> The extracts below are from the pdf file available at line three of
>> news-report at http://www.wired.com/news/antitrust/0,1551,44902-2,00.html
>>>
>>> United States Court of Appeals
>>> FOR THE DISTRICT OF COLUMBIA CIRCUIT
>>> Argued February 26 and 27,2001
>>> Decided June 28,2001
>>> No.00 5212
>>> UNITED STATES OF AMERICA,
>>> APPELLEE
>>> v.
>>> MICROSOFT CORPORATION,
>>> APPELLANT
>>> Consolidated with
>>> 00 5213
>>> Appeals from the United States District Court
>>> for the District of Columbia
>>> page 24
>>> Even if we were to require direct proof, moreover, Micro-
>>> softıs behavior may well be sufficient to show the existence of
>>> monopoly power.
>>> page 25
>>> B.Anticompetitive Conduct
>>> As discussed above,having a monopoly does not by itself
>>> violate §2.A firm violates §2 only when it acquires or
>>> maintains,or attempts to acquire or maintain,a monopoly by
>>> engaging in exclusionary conduct as distinguished from
>>> growth or development as a consequence of a superior prod-
>>> uct, business acumen,or historic accident.ıı
>>> page 26
>>> First,to be con-
>>> demned as exclusionary,a monopolistıs act must have an
>>> anticompetitive effect.ıı That is, it must harm the competi-
>>> tive process and thereby harm consumers. In contrast,harm
>>> to one or more competitors will not suffice.The [Sherman
>>> Act ] directs itself not against conduct which is competitive,
>>> even severely so, but against conduct which unfairly tends to
>>> destroy competition itself.ıı
>>> page 40
>>> 3.Agreements with Internet Access Providers
>>> page 42
>>> We turn now to Microsoftıs deals with IAPs concerning
>>> desktop placement. Microsoft concluded these exclusive
>>> agreements with all the leading IAPs,ıı
>>> page 46
>>> See
>>> generally Dennis W.Carlton,A General Analysis of Exclu-
>>> sionary Conduct and Refusal to Deal Why Aspen and
>>> Kodak Are Misguided ,68 ANTITRUST L.J.659 (2001)(explain-
>>> ing various scenarios under which exclusive dealing,particu-
>>> larly by a dominant firm,may raise legitimate concerns about
>>> harm to competition).
>>>
>>> By ensuring that the majorityııof all IAP subscribers
>>> are offered IE either as the default browser or as the only
>>> browser, Microsoftıs deals with the IAPs clearly have a
>>> significant effect in preserving its monopoly;they help keep
>>> usage of Navigator below the critical level necessary for
>>> Navigator or any other rival to pose a real threat to Micro-
>>> soft ıs monopoly.See,e.g.,id .ĥ 143 ((Microsoft sought to
>>> divert enough browser usage from Navigator to neutralize it
>>> as a platform.ıı);see also Carlton,at 670.
>>>
>>> Plaintiffs having demonstrated a harm to competition,the
>>> burden falls upon Microsoft to defend its exclusive dealing
>>> contracts with IAPs by providing a procompetitive justifica-
>>> tion for them.
>>> Accordingly, we affirm the District Court ıs deci-
>>> page 47
>>> sion holding that Microsoftıs exclusive contracts with IAPs
>>> are exclusionary devices,in violation of §2 of the Sherman
>>> Act.
>> --
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--
Best regards,
William X Walsh <william@userfriendly.com>
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